Opinion
CV-21-00509-TUC-JGZ (JR)
07-12-2022
Jason Fritch, Plaintiff, v. Orion Manufactured Housing Specialists Incorporated, et al., Defendants.
REPORT AND RECOMMENDATION
Jacqueline M. Rateau, United States Magistrate Judge
Before the Court is Plaintiff's Motion to Toll Statute of Limitations. (Doc. 35) For the reasons that follow, the Magistrate Judge recommends that Plaintiff's motion be denied, without prejudice, because it is premature. The Magistrate Judge also recommends that the Court grant Plaintiff leave to re-file his motion should circumstances arise that demonstrate opt-in members are precluded from joining suit under the relevant statute of limitations.
BACKGROUND
Plaintiff Jason Fritch brings collective action against Defendants Orion Manufactured Housing Specialists and James Miller alleging that Miller failed to pay his employees time and a half for the overtime hours that they worked in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-219. (Doc. 11) Plaintiff brings the motion at hand arguing that the statute of limitations for opt-in collective action members should be tolled indefinitely, or until Defendant posts the requisite FLSA notice, to account for the time in which Miller failed to post the notice at his workplace. (Doc. 35 at 1-2) Miller responds that the statute of limitations should not be tolled simply because he failed to post FLSA standards. That fact, alone, he argues, is insufficient to require additional time for potential opt-in members to join suit. (Doc. 40 at 1-4) The issue for the Court to determine is whether Plaintiff has sufficiently demonstrated that equitable tolling is necessary under the aforementioned circumstances; and if so, what tolling timeframe applies. The Magistrate Judge finds that Plaintiff's motion is premature and recommends that the Court deny his motion without prejudice.
LEGAL STANDARD
"Any action under the FLSA for unpaid overtime compensation has a two-year statute of limitations, 'except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued.'" Baughman v. Roadrunner Commc'ns LLC, No. CV 12-565-PHX-SRB, 2012 WL 12937133, at *5 (D. Ariz. Sept. 27, 2012) (quoting 29 U.S.C. § 255(a)). "A cause of action accrues when the allegedly illegal employment practice occurs, and no later than the termination of such practice or the termination of the plaintiff's employment." Figueroa v. Cactus Mexican Grill LLC, No. CV 21-10445-FDS, 2021 WL 5868277, at *2 (D. Mass. Dec. 10, 2021). An action commences on the date in which written consent to become a party plaintiff is filed in the pertinent court. See 29 U.S.C. § 256(b). "To establish a willful violation, an employee must prove that his employer knew that its conduct was prohibited by the FLSA or showed reckless disregard about whether it was." Rose v. Wildflower Bread Co., No. CV09-1348-PHX-JAT, 2011 WL 208044, at *1 (D. Ariz. Jan. 20, 2011) (emphasis added) (citing Alvarez v. IBP, Inc., 339 F.3d 849, 908 (9th Cir. 2003)).
"[T]he doctrine of equitable tolling creates a defense to statutes of limitations and other nonjurisdictional filing deadlines for cases in which, despite due diligence, the plaintiff cannot sue within the statutory deadline." Sparre v. United States Dep't of Lab., Admin. Rev. Bd., 924 F.3d 398, 402 (7th Cir. 2019) (cleaned up). The equitable tolling doctrine is read into every federal statute of limitation, Holmberg v. Armbrecht, 327 U.S. 392, 397 (1946), and is "a rare remedy to be applied in unusual circumstances, not a cure all for an entirely common state of affairs," Wallace v. Kato, 549 U.S. 384, 396 (2007). "Under the FLSA, the statute of limitations for each individual party plaintiff is not tolled until he or she files a written consent to opt-in to the action." Rose, 2011 WL 208044, at *2 (citing 29 U.S.C. § 256(b)). "[G]enerally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way." Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1052 (9th Cir. 2013) (cleaned up).
DISCUSSION
At this early phase of the litigation, Plaintiff fails to demonstrate that putative opt-in collective class members were precluded from joining suit due to Defendant's failure to post FLSA notices at the workplace. The non-binding, out-of-circuit caselaw that he provides, see Doc. 35 at 2, fails to persuade the Court to toll the applicable statute of limitations whenever an employer acts in such a manner. To prevail under the equitable tolling doctrine, a more in-depth factual analysis is needed. Moreover, it appears that the Ninth Circuit has not addressed whether an employer's failure to post FLSA notices, in violation of 29 C.F.R. § 516.4, requires tolling of the statute of limitations for putative opt-in members. And there is a dearth of published district court caselaw within this circuit that also address that question. Accordingly, it is Magistrate Judge's recommendation that the Court deny Plaintiff's motion without prejudice with leave to re-file should additional facts become available for the equitable tolling doctrine to apply.
RECOMMENDATION
Based on the foregoing, the Magistrate Judge RECOMMENDS that the Court, after its independent review, DENY WITHOUT PREJUDICE Plaintiff's Motion to Toll Statute of Limitations (Doc. 35), and GRANT PLAINTIFF LEAVE to re-file his motion as factual development in the case progresses.
This Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
However, the parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1) and Federal Rules of Civil Procedure 72(b), 6(a) and 6(e). Thereafter, the parties shall have fourteen days within which to file a response to the objections. Replies shall not be filed without first obtaining leave to do so from the Court. If any objections are filed, this action should be designated case number: CV 21-00509-TUC-JGZ. Failure to file timely objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).